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People v. Calhoun11/2/2004
s in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. [ ] ... Although the court is require to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Id. at p. 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)
Nevertheless, Scott recognized there are exceptions to its general rule regarding waiver of sentencing errors:
"Of course, there must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today's decision. This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Id. at p. 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040, italics added.)
In this case, prior to the trial court's pronouncement of Waller's sentence, Waller was not apprised of the reason (or reasons) supporting the court's discretionary sentencing choice of imposing the upper six-**553 year term for each of his gross vehicular manslaughter convictions. In fact, neither the multiple-victim circumstance nor the consecutive-sentence "nonimposition" circumstance was cited as an aggravating circumstance in the probation report or the prosecutor's statement in aggravation. Prior to the court's sentencing decision, there was no reference to either of those possible aggravating circumstances by the parties, the probation department, or the trial court. Rather, those circumstances were first mentioned by the trial court at the time it pronounced its sentencing decision. Furthermore, Waller's counsel could have reasonably understood the trial court's express reliance on "that aggravating factor" as referring to the multiple-victim circumstance, which was cited immediately prior to that phrase. [FN14] In so doing, Waller's counsel could not *1053 reasonably be charged with immediately understanding the full ramifications of that cited aggravating circumstance. As we noted in part II.B., ante, there is a split of case authority on whether the multiple-victim aggravating circumstance applies when there is only one victim per offense. Not only had this court not yet addressed the issue, but the most recent appellate decision (in 1995) was People v. Valenzuela, supra, 40 Cal.App.4th 358, 46 Cal.Rptr.2d 715, which upheld that application of the multiple-victim aggravating circumstance. (Id. at p. 365, 46 Cal.Rptr.2d 715.) Also, the multiple-victim aggravating circumstance is a rather esoteric one, having been deleted in 1991 as an aggravating circumstance listed in the California Rules of Court. (Id. at p. 363, 46 Cal.Rptr.2d 715.) Therefore, it would be unreasonable to expect Waller's counsel to immediately comprehend the "objectionability" of the multiple-victim circumstance cited as an aggravating factor for the first time by the trial court on pronouncing Waller's sentence. We conclude Waller did not have a " meaningful opportunity to object" to the trial court's sentencing error (Scott, supra, at p. 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040) and did not waive the sentencing error contention.
FN14. To the extent that language was ambiguous whether it referred to the multiple-victim circumstance or to the earlier-cited consecutive-sentence "nonimposition" circumstance, we believe in the circumstances of this case it would be unreasonable to expect Waller's counsel to instantly perceive that ambig
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